RELIFORD v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION. Signed by Judge Jerome B. Simandle on 6/30/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANDREW RELIFORD,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 16-457 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Sheryl Gandel Mazur, Esq.
195 Fairfield Avenue
Suite 2C
West Caldwell, NJ 07006
Attorney for Plaintiff Andrew Reliford
Matthew Jared Littman, Esq.
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
Philadelphia, PA 19147
Attorney for Defendant Commissioner of Social Security
SIMANDLE, District Judge:
I. INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C. §
405(g) for review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff Andrew
Reliford’s application for disability benefits under Title XVI
of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff,

who suffers from asthma, status post gunshot wounds with
residual pain, depression, and a history of alcohol abuse in
remission, was denied benefits for the period beginning November
14, 2011, the alleged onset date of disability, to October 27,
2014, the date on which the Administrative Law Judge (“ALJ”)
issued a written decision.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on three grounds.
Plaintiff contends that the ALJ erred in (1) failing to consider
all of Plaintiff’s severe and non-severe impairments; (2)
discrediting Plaintiff’s subjective complaints, including pain;
and (3) omitting some of Plaintiff’s additional documented
limitations in determining Plaintiff’s residual functioning
capacity (“RFC”). For the reasons discussed below, the Court
will affirm the ALJ’s decision denying Plaintiff disability
benefits.
II. BACKGROUND
A. Procedural History
Plaintiff Andrew Reliford filed an application for
disability insurance benefits on November 14, 2011, alleging an
onset of disability as of that date. (R. at 22.) On March 1,
2012, the Social Security Administration (“SSA”) denied the
claim, and upon reconsideration on January 10, 2013. (Id.)
Hearings were held on February 14, 2014 before ALJ Leslie Rogall
2

and on September 10, 2014 before ALJ Dennis O’Leary, at which
Plaintiff appeared with counsel and testified and at which a
vocational expert also testified. (Id.) On October 27, 2014, ALJ
O’Leary denied Plaintiff’s appeal at step five of the sequential
analysis, finding that Plaintiff could perform work as a table
worker, order clerk, or ampoule sealer. (R. at 30.) The Appeals
Council denied Plaintiff’s request for a review and Plaintiff
timely filed the instant action. (R. at 1-7.) Subsequent to the
ALJ’s decision, Plaintiff was awarded disability benefits upon a
new application, based on a different injury, filed on December
30, 2015. (Plaintiff’s Brief at 4-5.)
B. Medical History 1
The following are facts relevant to the present motion.
Plaintiff was 45 years old as of the date of the ALJ Decision
and had completed the eleventh grade and did not hold a GED.

1

Plaintiff has provided new medical records documenting “the
ongoing severity of his asthma condition” into 2015, after the
ALJ rendered his decision finding Plaintiff not disabled. An
appeal for judicial review from the District Court is not the
proper way for Plaintiff to introduce new evidence of his
disability that post-dates the ALJ’s decision. The District
Court reviews the Commissioner’s final determination with
regards to the evidence provided to the SSA during the
administrative appeals process, and will only overturn the
Commissioner’s findings if they are not supported by
“substantial evidence” already in the medical record. 42 U.S.C.
§ 405(g).
3

Plaintiff had work experience as a hand packager, janitor, fast
food worker, and recycler. (R. at 79-80.) 2
1. Asthma
Plaintiff testified before the ALJ that he has been
diagnosed with COPD and asthma, and that he has shortness of
breath going up and down stairs or walking a block. (R. at 5960.) When he has an attack, which Plaintiff alleges happens
“maybe about four or five times out of the month,” he uses a
nebulizer, emergency inhaler, or goes to the emergency room. (R.
at 60-62.) He alleges that he takes Prednisone, Advair, and
Singulair. (R. at 61.)
In October and November of 2011, Plaintiff visited the ER
or was hospitalized at Newark Beth Israel Medical Center for
asthma or upper-respiratory problems six times. (R. at 476-551.)
He was discharged with medication. (R. at 502, 551.) It appears
that Plaintiff reported to Dr. Patel three times for bronchial
asthma in 2012 (R. at 576-88, 761), and that he reported to Dr.
Gupta of Jersey Rehab that his asthma was “resolved” as of
November 15, 2012. (R. at 626.) At some point, Dr. Patel
completed a pulmonary RFC questionnaire in which he diagnosed

2

Plaintiff testified at the February 14, 2014 that he had worked
“[a]bout seven months ago” taking orders at a produce store, but
that he had to stop because the temperature changes and exhaust
from the trucks aggravated his asthma and because the lifting
hurt his back. (R. at 49-50.)
4

Plaintiff with COPD and asthma but did not identify any clinical
findings, laboratory work, or function tests that supported his
finding of impairments, and did not note how often Plaintiff has
attacks and how long they last, or describe the nature,
frequency and length of contact of their relationship. (R. at
589.) He opined that Plaintiff’s symptoms were severe enough to
“constantly” interfere with his attention and concentration and
that Plaintiff’s asthma would be a “severe limitation” on his
ability to deal with work stress. (R. at 590.)
Plaintiff sought treatment for asthma a number of times in
the second half of 2013. Plaintiff was admitted to the ER on
August 5, 2013 with a “wheezing lung sound” and “unable to speak
in full sentence[s],” and his chart notes that “the
course/duration of symptoms is worsening” although this was his
first “asthma exacerbation in over a year.” (R. at 635-638.)
Plaintiff’s respiratory exam showed regular respiration with
moderate expiratory wheezes. (R. at 639.) He was treated with a
nebulizer and discharged in stable condition with “no limited
activity [and] no limited work.” (R. at 640.) Plaintiff returned
to the ER on August 20, 2013 and was admitted to the intensive
care unit directly. (R. at 666.) Plaintiff admitted to not
following his home medication instructions, but his shortness of
breath subsided after one day of treatment and he was discharged
without chest pain or difficult breathing. (R. at 666-67.)
5

Imaging of Plaintiff’s chest showed “no radiographic evidence of
acute pulmonary disease.” (R. at 667.)
Plaintiff followed up with Dr. Pathak on September 10,
2013, reporting that he felt some “longing of oxygen” but that
he had not be taking all his medications regularly since he was
last discharged from the hospital. (R. at 698.) Dr. Pathak’s
exam showed no shortness of breath or wheezing, lungs clear to
auscultation with non-labored respirations and equal breath
sounds, and no chest wall tenderness. (R. at 698-700.) Dr.
Pathak instructed Plaintiff to take all his medications
regularly and report back with discomfort. (R. at 700.) On
September 13, 2013, Plaintiff followed up with another
pulmonologist, Dr. Mehta, reporting that his breathing was
better overall but that he still had some shortness of breath at
night and poor sleep. (R. at 654.) The exam showed a “chest wall
free of abnormalities,” normal breathing pattern and effort,
normal breath sounds, and no wheezing or rhonchi. (R. at 655.)
On November 8, 2013, Plaintiff again saw Dr. Mehta, complaining
of “shortness of breath . . . exertional dyspnea, excessive
daytime sleepiness, fragmented sleep, [and] frequent arousals”
but noting that he had “no ER admissions [and] no frequent
attacks” since his last visit. (R. at 652.) Dr. Mehta’s exam
again showed “chest wall free of abnormalities,” normal
breathing pattern and effort, normal breath sounds, and no
6

wheezing or rhonchi. (R. at 653.) Finally, Plaintiff visited Dr.
Pathak again on December 17, 2013, complaining of shortness of
breath on exertion but again admitting that he wasn’t regularly
taking his medications. (R. at 752.) Dr. Pathak’s respiratory
exam noted “Lungs are clear to auscultation, Respirations are
non-labored, Breath sounds are equal, No chest wall tenderness.”
(R. at 753.)
Nine months later, on September 17, 2014, Plaintiff
returned to Newark Beth Israel Medical Center with difficulty
breathing after exposure to smoke at a friend’s barbeque. (R. at
842.) He reported having needed nebulizer treatments from other
hospital emergency departments two other times in the days prior
and getting “admitted in the hospital for asthma exacerbations
2-3 times each year.” (Id.) Plaintiff responded well to
treatment and was discharged in stable condition. (Id.) Imaging
taken during that hospital stay indicated clear lungs and no
evidence of pulmonary emboli. (R. at 843.) The respiratory exam
showed non-labored breathing and equal breath sounds. (R. at
844.)
2. Back, Neck, and Extremities
Plaintiff testified before the ALJ that he has pain in his
back, neck, and groin area related to his gunshot wounds. (R. at
62.) Plaintiff also testified that he has pain and numbness in
his legs from “blood clots” but that his doctors have decided
7

not to prescribe blood thinners until his clots “move” or “grow
bigger.” (R. at 63.) He takes Vicodin and Percocet to manage his
pain. (R. at 64.)
On February 12, 2012, Plaintiff sought treatment for
substance abuse at Integrity, Inc. (R. at 557-575.) At his
intake, Plaintiff reported no neurological or musculoskeletal
problems, including numbness, weakness, extremity pain, or back
pain. (R. at 567.)
Plaintiff received treatment from Dr. David, a physiatrist,
between August and November of 2012. (R. at 593-620.) Dr. David
noted that Plaintiff “ambulates with a nonatalgic gait” and
observed lumbago and cervicalgia and recommended that Plaintiff
begin a course of physical therapy for those conditions and for
lumbar and neck sprain. (R. at 615.) Plaintiff received physical
therapy for pain in his neck and low back at Advanced
Rehabilitation and Wellness Center from August through October
of 2012. (R. at 593-612.) At his initial physical therapy exam,
Plaintiff rated his pain an 8 out of 10 and reported “dull
aching pain on his upper and lower back region that sometimes
throbs.” (R. at 609.) Plaintiff reported that he was
“independent with his functional skills and [activities of daily
living] but with difficulty.” (Id.) His therapist noted
decreased range of motion in the cervical and lumbar spine and
bilateral tenderness to palpitation in the trapezius muscles.
8

(R. at 609-612.) Therapists rated his “rehab potential” as
“good” throughout the records of his visits. (Id.) Imaging of
his spine taken on October 5, 2012 at Barnabas Health Imaging
Center showed “[n]o evidence of herniation, spinal stenosis,
foraminal narrowing or abnormal signal within the cord” in the
lumbar spine and “[m]ultilevel degenerative changes, disc
disease with canal and foraminal narrowing most marked at C5-C6
where there is effacement of the cord” in the cervical spine.
(R. at 616-20.)
Plaintiff was evaluated by Dr. Gupta of Jersey Rehab on
November 15, 2012 for complaints of neck pain radiating to his
hands and low back pain. (R. at 625.) Plaintiff reported that he
had trouble turning his neck from left to right, experienced
numbness and tingling in his hands, that his symptoms “worsen
with daily activities of lifting, pushing, and pulling,” and
that he found no relief from his symptoms from physical therapy.
(Id.) He also reported throbbing, sharp pain in his low back
radiating down his right leg to the ankle. (Id.) Dr. Gupta noted
a normal gait but diminished range of motion in the cervical and
lumbar spine with some tenderness, pain, numbness, and tingling.
(R. at 625-26.) Dr. Gupta diagnosed Plaintiff with low back pain
without sciatica and cervical radiculopathy. (R. at 627.) He
prescribed Vicodin and diclofenac sodium and recommended that

9

Plaintiff continue with physical therapy and have cervical
surgery. (Id.)
In August of 2013, Plaintiff received treatment for deep
vein thrombosis while he was hospitalized for complications with
his asthma. (R. at 670-71.) Plaintiff’s discharge summary notes
that he was ambulatory and that because “this was below knee DVT
and repeat dopplers did not show any proximal extension, no
anticoagulation was initiated.” (R. at 671, see also at 667.)
As part of his exams in September and December of 2013, Dr.
Pathak noted normal range of motion, strength, and gait, with no
tenderness or swelling. (R. at 700, 753.) Plaintiff reported to
Dr. Pathak that he had “mild” non-radiating pain “in the middle
of the back” but was not experiencing pain that day. (R. at
699.)
3. Mental Impairments
Plaintiff testified before the ALJ that he began seeing a
doctor at Palisades Behavioral Health Care because he had “a
change in [his] attitude” after he was shot. (R. at 64.) He
testified that he was “not being able to sleep; anxiety; hypo –
just hypo at times; always on alert; always thinking someone’s
after me; nightmares, constantly . . .” (Id.) He said that his
doctor diagnosed him with post-traumatic stress disorder,
anxiety, and hypertension and prescribed Wellbutrin and Prozac,
although he hadn’t taken the Prozac. (R. at 65.)
10

On February 12, 2012, Plaintiff sought treatment for
substance abuse at Integrity, Inc. (R. at 557-575.) At his
intake, Plaintiff denied experiencing anxiety, depression,
nightmares, or flashbacks. (R. at 564-65.) Plaintiff apparently
attended an outpatient counseling program at Bethel Counseling
Services in August of 2013 (R. at 681) and the GenPsych program
for anxiety and substance abuse starting in September of 2013.
(R. at 805-813.) In February of 2014, Dr. Kurani of Palisades
Behavioral Care diagnosed Plaintiff with “major depression, post
traumatic stress disorder” and prescribed Wellbutrin for
depression and Prozac for Plaintiff’s nightmares associated with
PTSD. (R. at 672-73.)
4. State Agency Consultants
Two state agency medical consultants examined Plaintiff on
February 27, 2012 and upon reconsideration on January 9, 2013.
(R. at 87-111.) Both doctors concluded that Plaintiff could
occasionally lift/carry 20 pounds and frequently lift/carry ten
pounds; could stand/walk about six hours and sit about six hours
in an 8-hour workday; and that Plaintiff had postural
limitations. (R. at 95, 108-09.)
C. ALJ Decision
In a written decision dated October 27, 2014, the ALJ found
that Plaintiff was not disabled within the meaning of the Social
Security Act at any time through the date of the decision
11

because, consistent with his age, education, work experience,
and RFC, he was capable of working as a table worker, order
clerk, or ampoule sealer. (R. at 30.)
At the first stage of the five-step sequential evaluation
process, the ALJ determined that the Plaintiff had not engaged
in substantial gainful activity since November 14, 2011, the
alleged onset date of disability. (R. at 24.)
At step two, the ALJ determined that Plaintiff suffered
from the following “severe impairments: status post gunshot
wounds with residual pain; asthma; depression; and a history of
alcohol abuse currently in remission.” (R. at 24.) The ALJ found
that Plaintiff’s deep vein thrombosis was not severe because
“there is no evidence which shows that his impairment results in
debilitating limitations.” (Id.) Despite recognizing Plaintiff’s
physical and mental impairments as severe, at step three, the
ALJ concluded that Plaintiff’s impairments did not meet, or
equal in severity, any impairment found in the Listing of
Impairments set forth in 20 C.F.R. Part 404. (R. at 26.)
At step four, the ALJ determined that Plaintiff possessed
the residual functioning capacity to perform sedentary work,
except that:
He is limited to only occasional push or pull and
occasional foot control operation. He is limited to
frequent fingering and feeling, and should avoid
exposure to irritants such as fumes, odors, dusts, and
gases. He is limited to performing simple, routine and
12

repetitive tasks. He should be able to sit or stand
alternatively at will provided that he is not off task
for more than 5% of the work period outside of regularly
scheduled breaks.

(R. at 26.) Although the ALJ found that Plaintiff’s physical and
mental impairments caused the alleged symptoms, he found
Plaintiff’s statements concerning the intensity, persistence, or
limiting effects of those symptoms not credible because they
were inconsistent with his testimony about his daily activities
and with the medical evidence in his file. (R. at 27, 29.)
Plaintiff testified at his hearing that he will sit, walk, and
stretch on a typical day; do “little things” like take out the
garbage, fold clothes, make his bed, and prepare meals; that he
can dress himself without difficulty and sometimes drive; that
he goes to the movies a few times a month and plays Scrabble;
that he can sit for 45 minutes, stand for an hour, lift a gallon
of milk, and pay attention to tasks for about two hours. (R. at
66-69.)
In support of these findings, the ALJ evaluated Plaintiff’s
testimony; the observations and opinions of treating physicians;
Plaintiff’s treatment notes, record of care, and his use of
medication; the intensity, persistence, and limiting effects of
symptoms associated with his medical conditions; and testimony
from a vocational expert. (R. at 26-30.) Specifically, with
respect to Plaintiff’s asthma, the ALJ concluded that
13

Plaintiff’s treatment notes in the record do not sustain his
allegations of a disabling impairment because Plaintiff failed
to comply with his prescribed treatment at times and there have
been “periods of over a year in which he has not required visits
to the emergency room for shortness of breath.” (R. at 29.) With
respect to the effects of Plaintiff’s gunshot wounds and his
allegations of pain, the ALJ noted that imaging of Plaintiff’s
spine from October 2012 indicated multilevel degenerative
changes and narrowing at C5-6 and that Plaintiff was recommended
surgery, engaged in a course of physical therapy, and received
medication for residual pain, but that DDS consultants, whose
assessments the ALJ gave “great weight,” recommended that
Plaintiff could “perform a range of light work with postural
restrictions.” (R. at 29.) With respect to Plaintiff’s
psychological condition, the ALJ found that Plaintiff’s
“depression allegations ha[d] no real clinical findings,” based
his review of records from Plaintiff’s treatment at Integrity
House for substance Abuse and Palisade Behavioral Care and the
DDS consultants’ finding that any alleged psychological
impairment did not preclude all work activity. (R. at 28.) The
ALJ also noted that the Plaintiff conceded that he has not
filled some of his prescriptions and that he only sought
psychiatric care right before the hearing. (R. at 27.)

14

Ultimately, the ALJ determined that, although Plaintiff is
unable to perform any past relevant work, there are jobs that
exist in significant numbers in the national economy that he can
perform. (R. at 29-30.)
III. STANDARD OF REVIEW
This Court reviews the Commissioner's decision pursuant to
42 U.S.C. § 405(g). The Court’s review is deferential to the
Commissioner’s decision, and the Court must uphold the
Commissioner’s factual findings where they are supported by
“substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r
of Soc. Sec., 507 F. App’x 111, 114 (3d Cir. 2012). Substantial
evidence is defined as “more than a mere scintilla,” meaning
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 400 (1971); Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 292 (3d Cir. 2012) (using the same language as Richardson).
Therefore, if the ALJ’s findings of fact are supported by
substantial evidence, the reviewing court is bound by those
findings, whether or not it would have made the same
determination. Fargnoli, 247 F.3d at 38. The Court may not weigh
the evidence or substitute its own conclusions for those of the
ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011). Remand is not required where it would not affect the
15

outcome of the case. Rutherford v. Barnhart, 399 F.3d 546, 553
(3d Cir. 2005).
IV. DISCUSSION
A. Legal standard for determination of disability
In order to establish a disability for the purpose of
disability insurance benefits, a claimant must demonstrate a
“medically determinable basis for an impairment that prevents
him from engaging in any ‘substantial gainful activity’ for a
statutory twelve-month period.” Plummer v. Apfel, 186 F.3d 422,
426 (3d Cir. 1999); 42 U.S.C. § 423(d)(1). A claimant lacks the
ability to engage in any substantial activity “only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.” Plummer, 186 F.3d at 427–428;
42 U.S.C. § 423(d)(2)(A).
The Commissioner reviews claims of disability in accordance
with the sequential five-step process set forth in 20 C.F.R. §
404.1520. In step one, the Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” 20
C.F.R. § 1520(b). Present engagement in substantial activity
precludes an award of disability benefits. See Bowen v. Yuckert,
482 U.S. 137, 140 (1987).

In step two, the claimant must
16

demonstrate that the claimant suffers from a “severe
impairment.”

20 C.F.R. § 1520(c).

Impairments lacking

sufficient severity render the claimant ineligible for
disability benefits.

See Plummer, 186 F.3d at 428.

Step three

requires the Commissioner to compare medical evidence of the
claimant’s impairment to the list of impairments presumptively
severe enough to preclude any gainful activity.

20 C.F.R. §

1520(d). If a claimant does not suffer from a listed impairment
or its equivalent, the analysis proceeds to steps four and five.
Plummer, 186 F.3d at 428. Step four requires the ALJ to consider
whether the claimant retains the ability to perform past
relevant work. 20 C.F.R. § 1520(e). If the claimant’s
impairments render the claimant unable to return to the
claimant’s prior occupation, the ALJ will consider whether the
claimant possesses the capability to perform other work existing
in significant numbers in the national economy, given the
claimant’s residual functional capacity, age, education, and
work experience. 20 C.F.R. § 1520(g); 20 C.F.R. 404.1560(c).
B. Substantial evidence supports the ALJ’s findings
regarding Plaintiff’s credibly established limitations
Plaintiff asserts first that the ALJ erred at steps two,
three, and five of the sequential analysis by not fully
considering Plaintiff’s severe and non-severe impairments,
including his asthma, status-post nerve damage in his back and

17

legs, and mental impairments. The Court will address each
category of Plaintiff’s impairments in turn.
With respect to Plaintiff’s respiratory issues, the ALJ
found at step two of the sequential analysis that Plaintiff’s
asthma is a “severe impairment” because it is a “medically
determinably impairment[] that . . . significantly limits the
claimant’s mental and physical abilities to do one or more basic
work activities,” but determined at step three that Plaintiff’s
condition does not meet or medically equal any of the listed
impairments in 20 C.F.R. Part 404, Supbart P, Appendix 1,
Section 3.00. (R. at 24.) Plaintiff takes the position that the
ALJ erred by finding that his asthma does not meet or equal
Listing 3.03, Asthma, because he did not “fully and fairly
review[] Mr. Reliford’s medical evidence and testimony.” (Pl.
Br. at 16.)
To the contrary, the ALJ properly considered Plaintiff’s
medical evidence of respiratory issues and found that they did
not meet or equal Listing 3.03. The SSA Regulations define an
asthma attack as “prolonged symptomatic episodes lasting one or
more days and requiring intensive treatment, such as intravenous
bronchodilator or antibiotic administration or prolonged
inhalational bronchodilator therapy in a hospital, emergency
room, or equivalent setting.” 20 C.F.R. Part 404, Subpart P,
Appendix 1, Section 3.00C. Asthma attacks are considered
18

disabling where “in spite of prescribed treatment and requiring
physician intervention, [they] occur[] at least once every 2
months or at least six times a year.” Id., Section 3.03B. A
review of Plaintiff’s hospitalization records – not his
subjective recounting of his asthma incidents, as will be
discussed further, below – reveals that substantial evidence
supports the ALJ’s observation that the Plaintiff “is noted to
have periods of over a year in which he has not required visits
to the emergency room for shortness of breath” and that “[h]e is
also noted to be noncompliant with his prescribed treatment at
times.” (R. at 29.) While Plaintiff was apparently hospitalized
six times in 2011, there are no records of attacks in 2012 and
only two in August of 2013, the second of which may have been
caused or exacerbated because Plaintiff admitted to not
following the directions on his medications; it appears that
each time, Plaintiff’s symptoms improved quickly after hospital
treatments and resuming his medications as prescribed. Plaintiff
attended appointments with two pulmonologists, Dr. Pathak and
Dr. Mehta, a number of times in the fall of 2013, but treatment
notes from both doctors reveal clear lungs, normal breathing
patterns, and further admissions from Plaintiff that he was not
taking his medications regularly. Accordingly, the ALJ’s
conclusion at step three that Plaintiff’s respiratory symptoms

19

did not meet or equal Section 3.03, Asthma, is supported by
substantial evidence.
Likewise, the ALJ’s decision at step five to afford little
weight to Dr. Patel’s opinion that Plaintiff was unable to work
because of his respiratory impairments was supported by
substantial evidence. Dr. Patel concluded, on his pulmonary RFC
questionnaire, that Plaintiff’s respiratory impairments would
severely limit his ability deal with work stress and would
constantly interfere with his attention and concentration, but
Dr. Patel’s conclusions were not supported or explained on the
questionnaire and are inconsistent with other records from Drs.
Pathak and Mehta. Under such circumstances, Dr. Patel’s opinion
was not entitled to controlling weight. Fargnoli v. Massanari,
247 F.3d 34, 43 (3d Cir. 2001). The ALJ’s final formulation of
Plaintiff’s RFC – limiting Plaintiff to sedentary work and
avoiding “exposure to irritants such as fumes, odors, dusts, and
gases” – accounted for Plaintiff’s respiratory symptoms and
other complaints to the doctors who documented their contact
with Plaintiff more extensively.
Next, Plaintiff asserts that the ALJ erred at step five in
determining that Plaintiff’s status-post nerve damage in his
back and legs from his gunshot wounds would not prevent him from
occasional pushing and pulling and frequent fingering and

20

feeling, and would not keep him off task for more than 5% of his
time working.
To the contrary, substantial evidence in the record
supports the ALJ’s finding that Plaintiff can still work.
Despite Plaintiff’s subjective complaints, to be discussed
further below, imaging of Plaintiff’s spine showed only “mild to
moderate” degenerative disc disease in the cervical spine but
otherwise minimal or no evidence of spinal abnormalities;
physical exams often showed that Plaintiff had normal gait,
normal strength, and full range of motion; Plaintiff’s potential
for rehabilitation was rated “good” before he decided to stop
physical therapy; and Plaintiff does not use a walker,
wheelchair, cane, crutches, or braces. Plaintiff reported to his
physical therapists that he could independently perform
functional skills and activity of daily living “with
difficulty,” consistent with his December 2011 report that he
dresses, bathes, and prepares meals himself and that he goes
outside and uses public transportation daily, and his testimony
before the ALJ that he walks, stretches, and does light
household chores on a daily basis, and that he can sit for 45
minutes and stand for one hour at a time. Both state agency
consultants opined that Plaintiff could in fact perform a range
of light work. Accordingly, there is substantial evidence
supporting the ALJ’s finding that Plaintiff could perform
21

sedentary work with some limitations on his pushing, pulling,
foot control operation, fingering, and feeling, and requiring
Plaintiff to be able to sit or stand alternately at will.
Of course, there is evidence in the record from which the
ALJ could have found Plaintiff more limited by his back and
extremity issues – for example, Dr. David noted tenderness and
weakness in Plaintiff’s neck, prescribed physical therapy and
medication for residual pain, and recommended surgery, and
Plaintiff’s physical therapists noted decreased range of motion
in Plaintiff’s neck, spine, and legs. But where, as here, there
is substantial evidence supporting the ALJ’s conclusion, the
district court may not reweigh the evidence “or substitute [our
own] conclusions for those of the fact-finder.” Rutherford, 399
F.3d at 522.
Finally, Plaintiff contends that the ALJ did not adequately
evaluate his mental impairments, including depression and posttraumatic stress disorder, in accordance with 20 C.F.R. §
416.920a. However, the ALJ’s written decision outlines his
findings in accordance with the Regulations’ “special technique”
for evaluating mental impairments: as required, the ALJ
considered Plaintiff’s symptoms, signs, and laboratory findings
and whether they show a determinable mental impairment; rated
Plaintiff’s degree of functional limitation with respect to
understanding, remembering, or applying information, interacting
22

with others, concentration, persistence, and maintaining pace,
and adapting and managing himself; evaluated whether the
limitation was “none,” “mild,” or “severe” and whether it meets
or equals in severity a listed mental disorder; and assessed
Plaintiff’s residual functional capacity. See § 416.920a(b),
(c), (d), & (e).
Moreover, substantial evidence supports the ALJ’s finding
that Plaintiff suffers from depression but that he has only mild
daily living activity restrictions, mild social functioning
difficulties, moderate concentration, persistence or pace
difficulties, and no extended duration decompensation episodes,
and his determination that Plaintiff can still perform “simple,
routine and repetitive tasks.” Even after both gunshot wounds,
Plaintiff reported that he experienced no emotional problems
when he sought substance abuse treatment, and his physical exams
with other doctors reported no anxiety or depression under
psychiatric symptoms. Later, Plaintiff was prescribed Prozac and
Wellbutrin for depression and nightmares, but he filled only one
of his prescriptions and appears to have cancelled follow-up
appointments because he “fel[t] fine.” (R. at 854.) Plaintiff’s
records show that he attended a few outpatient counseling
programs but that he only began seeking psychiatric care shortly
before the ALJ hearing. He also reported daily activities and no
problems concentrating for two hours at a time or following
23

written and spoken directions. Neither state agency consultant
found evidence of any psychological impairment that resulted in
limitations. Indeed, the ALJ noted that he was giving Plaintiff
the “benefit of the doubt” in limiting him to simple repetitive
work, and that his alleged problems with concentration and focus
might be the side effect of his pain medications.
To the extent that Plaintiff asserts that the ALJ was
required to order additional consultative evaluation or
recontact treating sources in accordance with 20 C.F.R. §
416.920b (Pl. Br. at 18), Plaintiff is incorrect that the ALJ
“was under a duty” to further develop the record through any
particular method, and he has not shown that the evidence in his
case record is “insufficient or inconsistent” such that the
record needs further development. Section 416.920b(b)(2)
describes the actions the SSA “may” take if it cannot make a
determination or decision about disability based on the evidence
in a claimant’s case record. Crucially, the regulations do not
require the SSA to take any particular action, or even to take
action at all where there is inconsistent evidence but the
agency finds it can make a determination despite the conflicting
evidence it has. The absence of any consultative evaluations in
Plaintiff’s voluminous record do not mandate reversal and
remand.

24

For these reasons, the ALJ’s findings about Plaintiff’s
limitations are supported by substantial evidence in the record
and need not be reversed and remanded.
C. Substantial evidence supports the ALJ’s credibility
findings
Next, Plaintiff argues that the ALJ erred in failing to
fully or fairly evaluate Plaintiff’s subjective complaints of
his respiratory issues, back and leg pain, and mental
impairments, and to provide a rationale for discounting
Plaintiff’s credibility. In particular, Plaintiff asserts that
the ALJ ignored his allegations of shoulder, arm, and hand pain,
weakness and shaking, pain on sitting, limited concentration,
swelling in his ankles and legs from deep vein thrombosis,
nightmares, and flashbacks.
Assessments of a claimant’s account of his symptoms,
including pain, must proceed as follows. First, a claimant must
show that a medically determinable impairment exists which may
cause symptoms like “pain, fatigue, shortness of breath,
weakness, or nervousness.” 20 C.F.R. § 416.929(b). Then, the ALJ
must “evaluate[] the intensity and persistence of [the]
symptoms, such as pain, and determin[e] the extent to which
[the] symptoms limit” the claimant’s capacity for work. §
416.929(c). To do so, the ALJ considers objective medical
evidence, the claimant’s statements about his symptoms, other

25

evidence submitted by medical sources, and observations by state
agency employees about the claimant’s daily activities, what
precipitates or aggravates symptoms, and medications and other
treatments. Id. at (c)(3). The ALJ must evaluate all relevant
evidence, give subjective complains “serious consideration,” and
explain the reason for rejecting any particular piece of
testimony. Burns v. Barnhart, 312 F.2d 113, 129 (3d Cir. 2002).
“Although the ALJ is required to consider the Plaintiff’s
subjective complaints of pain, the ALJ may reject these
complaints when they are inconsistent with objective medical
evidence in the record.” Morel v. Colvin, Civil No. 14-2934,
2016 WL 1270758, at *4 (D.N.J. Apr. 1, 2016) (citing Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)). “The substantial
evidence standard entitles an ALJ to considerable deference,
especially in credibility findings.” Volage v. Astrue, Civil No.
11-4413, 2012 WL 4742373, at *7 (D.N.J. Oct. 1, 2012) (citing
Smith v. Califano, 637 F.2d 968, 969 (3d Cir. 1981)).
In this case, the ALJ adequately set forth his rationale
for discounting Plaintiff’s subjective allegations of pain and
other symptoms. At step five, the ALJ concluded that “[t]he
credibility of claimant’s allegations is also weakened by
inconsistencies between his allegations and the medical
evidence” and that “there were inconsistencies in the claimant’s
testimony.” (R. at 29.) After noting that there were large gaps
26

in Plaintiff’s treatment, particularly for his respiratory
impairments, and that Plaintiff failed to follow directions with
his medications for asthma and depression, the ALJ found that
Plaintiff’s testimony about his daily living activities and
functional abilities was inconsistent with his allegations of
disabling asthma, back pain, and mental conditions, and also
inconsistent with objective medical evidence that Plaintiff’s
conditions could be managed with appropriate treatment. While
the ability to carry out certain daily activities will not
disprove that a claimant is disabled, Smith, 637 F.2d at 971-72,
the ALJ did not base his credibility finding on those activities
alone. Rather, the ALJ explained his reason for rejecting the
non-medical testimony: it was inconsistent with objective
medical evidence, other non-medical testimony, and records of
Plaintiff’s abilities. Accordingly, there is substantial
evidence to support the ALJ’s credibility findings, and we need
not reverse and remand for further consideration of Plaintiff’s
subjective complaints.
D. Substantial evidence supports the ALJ’s RFC finding
Finally, Plaintiff takes the position that the ALJ erred in
finding that he had the RFC to return to sedentary work with,
inter alia, occasional pushing and pulling, occasional use of
foot control operations, frequent fingering and feeling, and
sitting or standing at will provided that Plaintiff is only off
27

task for 5% of the work period outside of scheduled breaks.
Plaintiff asserts that the ALJ failed to discuss other
documented limitations, including alleged:
•
•
•
•
•

Need for 2-3 days per month absences for asthma attacks,
COPD or other respiratory impairments;
Need for unscheduled breaks of at least 1-2 hours, at
least 3 times a week due to asthma attacks, pain on
sitting, side effects of medication and pain;
Only occasional reaching, handling and fingering due to
injuries from gunshot wounds to the back and neck and
hand shaking from asthma steroid medications;
Need to alternate sitting and standing causing the
Plaintiff to be off task 1/3 of the day or two hours per
day;
Need to elevate legs or lay down at unpredictable times
due to DVT with swelling and clots in legs.

(Pl. Br. at 24.) According to Plaintiff, if the ALJ had
considered all of his limitations, the ALJ would have had to
conclude that he is disabled and cannot return to work.
Because this Court has already determined that substantial
evidence supports the ALJ’s determinations about Plaintiff’s
credibility and his credibly-established limitations, the
undersigned disagrees that there are other limitations that the
ALJ ought to have incorporated into the RFC at step five. The
ALJ’s formulation of the RFC accounts for (and with respect to
Plaintiff’s mental impairments, exceeds) the limitations that
the ALJ found were caused by Plaintiff’s asthma, back and
extremity pain, and depression. These additional limitations
were presented through sources in the record – Dr. Patel’s
28

pulmonary RFC questionnaire and Plaintiff’s subjective testimony
- that the ALJ was entitled to disregard or give little weight
to. The ALJ did not err in this respect.
V. CONCLUSION
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s decision to deny Plaintiff benefits,
and that it should be affirmed.

An accompanying Order will be

entered.

June 30, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

29